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Tennessee Plaintiff Pursues Negligence Action Against City and Water Company
Posted by Martin Heller Potempa & Sheppard, PLLC on November 16, 2016
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Filing a personal injury claim against a municipality or government agency involves additional legal considerations, including its potential immunity from prosecution. In Fowler v. City of Memphis (Tenn. Ct. App. Aug. 11, 2016), the Court of Appeals of Tennessee discussed these aspects of a premises liability case against a governmental defendant. The plaintiff was injured when he fell into an uncovered water meter in the sidewalk. He filed suit against the city and the water company, alleging that the uncovered water meter was a dangerous condition of which the defendants had actual and constructive notice. After the lower court granted summary judgment in favor of the defendants, the plaintiff appealed.
Although the city and water company are generally immune from liability pursuant to the Tennessee Governmental Tort Liability Act, immunity does not apply to any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, public building, structure, dam, reservoir, or other public improvement owned and controlled by such a governmental entity. In such cases, the plaintiff must prove that the governmental entity had constructive or actual notice of the allegedly defective or dangerous condition. Another part of the Act removes immunity for injuries caused by the negligent acts or omissions of government employees within the scope of their employment unless the accident arises out of their performance of a discretionary function.
In Fowler, the plaintiff argued that the water company was negligent in using unsafe, easily-tampered-with covers for water meter boxes and then failing to remedy the dangerous condition that was created once it learned that the covers were being removed by third parties. On appeal, the court noted that while the defendant installed the water cover, it was undisputedly removed by a third party. The court went on to find there was no evidence that the defendant was ever made aware that the cover was missing, nor was there evidence that the water meter was uncovered for so long a period as to put the defendant on notice of its dangerous condition, or that it occurred frequently enough that it would be foreseeable to the defendants. Accordingly, the court affirmed summary judgment on the plaintiff’s defective or dangerous condition claim.
The court, however, also recognized that the plaintiff’s claim included allegations that the defendant’s employees were negligent in their initial decision to install the easily-tampered-with covers. Under this cause of action, the proper inquiry was whether the employees’ actions involved the exercise of a discretionary function. Yet, since the trial court did not address this claim in its order, the appeals court vacated the summary judgment and remanded the matter back to the lower court for consideration regarding the negligent design and installation of the water meter covers.
In many accident cases, the victim’s injury was caused by the negligent actions of another person. At Martin Heller Potempa & Sheppard, our Nashville attorneys help clients determine their legal recourse against careless defendants as well as represent them in premises liability claims. In addition, we handle cases involving automobile accidents and other personal injuries, family law matters, and estate planning services. To discuss your legal concerns with one of our dedicated attorneys, contact Martin Heller Potempa & Sheppard by phone at (615) 800-7096 or online to schedule a consultation.
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